JUST DAYS AFTER convicting impeached Supreme Court Chief Justice Renato Corona for failure to declare all his assets, members of the Philippine Senate, this time sitting as the upper chamber instead of an impeachment court, led the way towards greater transparency in government through the near unanimous endorsement of the Freedom of Information (FOI) bill.

With the senate’s quick and unequivocal move, all eyes are now turned to the House of Representatives, according to the members of the Right to Know, Right Now Coalition that had been fighting to get the measure passed by congress. The coalition is composed of 150 civil society and media organizations that have thrown their support behind the measure. The Philippine Center for Investigative Journalism (PCIJ) is one of the members of the coalition.

Coalition members trooped to the senate on Monday, June 4, to witness the sponsorship of the FOI bill by Senator Gregorio Honasan, chairman of the senate committee on public information.

Twenty two of the twenty three senators quickly endorsed the report, guaranteeing its immediate passage before the upper chamber. With that, the ball falls now on the House of Representatives, the same chamber that had demanded full transparency and accountability from Corona when 188 congressmen signed the impeachment complaint against him in December 2011.

Right to Know, Right Now coalition lead convenor Nepomuceno Malaluan says it is now time for the House of Representatives “to walk the talk” and prove that Corona’s impeachment was a sincere effort by the lower chamber to enforce transparency and accountability in all branches of government.

Key members of the House of Representatives have indicated their opposition, or at least their hesitation to support a measure guaranteeing the freedom of information to both the general public and the media. While the FOI measures in the past have generally been well received in the senate, the proposal has often failed to garner much support from the House.

The Right to Know, Right Now statement reads as follows:

Senate casts unanimous endorsement

of FOI, transparency as norm

WITHIN DAYS after casting a guilty verdict on former Supreme Court Chief Justice Renato C. Corona, 22 of the 23 senators affirmed support for the passage of the Freedom of Information Act and endorsed the committee report of Sen. Gregorio B. Honasan II, chairman of the Senate Committee on Public Information.

Twenty-two senators signed on to Honasan’s report that consolidates several FOI bills at the Senate, firm evidence of the Senate’s commitment to institutionalize transparency and access to information as the norm, practice, and obligation of all public officials and employees. Honasan formally sponsored the FOI bill at the Senate plenary session today, June 4, 2012.

The Senate’s decision to give the FOI Act a fighting chance is in stark contrast, however, to the extended inaction on the FOI bills at the committee level at the House of Representatives.

The Senate last week convicted Corona for culpable violation of the Constitution and betrayal of public trust when he failed to disclose the full details of his wealth in his statement of assets, liabilities, and net worth (SALN). The House whisked straight off to the Senate the articles of impeachment after 188 of about 250 House district and party-list members had endorsed it on Dec. 12, 2011.

The FOI bill had been filed, refiled, and rebuffed by the House members over the last 14 years. Today it still remains in limbo at the House even as the majority coalition in the House today is led by the Liberal Party allies of President Benigno Simeon C. Aquino III, who had formally, if only verbally, endorsed the passage of the FOI, at the height of Corona’s impeachment trial.

A People’s Bill

We commend the Senate Committee for keeping intact a progressive, pro-people FOI bill, even as it accommodates amendments proposed by Malacañang. The report used as basis the bicameral conference committee report that almost passed in the 14th Congress, and includes two amendments introduced by Malacañang to address concerns on national security matters and the President’s ability to get free and frank advice in the deliberation of decisions.

First, the words “national security” were inserted in exception (a), thereby expanding the concept of national security beyond national defense and foreign affairs, as follows:

“SECTION. 6. Exceptions. – x x x

(A) The information is specifically authorized to be kept secret under guidelines established by an executive order, and in fact properly classified pursuant thereto: Provided, That 1) The information directly relates to national security or defense and its revelation may cause grave damage to the national security or internal and external defense of the State; or 2) The information requested pertains to the foreign affairs of the Republic of the Philippines, when its revelation may weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with any state: Provided, further, That the executive order shall specify the reasonable period after which the information shall be automatically declassified or subject to mandatory declassification review, and that any reasonable doubt as to classification and declassification shall be settled in favor of the right to information;

Second, a new exception was introduced relating to the President’s deliberative process and communications privilege, as follows:

“SECTION 6. Exceptions. x x x

(B) The information consist of records of minutes, records of advice given or records of opinions expressed during decision-making or policy formulation, invoked by the Chief Executive to be privileged by reason of the sensitivity of the subject matter or by reason of the impairment of the Chief Executive’s deliberative process that would result from the disclosure thereof. Once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless they were made in executive session. “

Contrary to fears that these amendments “watered down” the FOI bill, the changes further balance legitimate interests involved in FOI. The public interest in protecting national security matters and in the President’s ability to secure confidential advice in the deliberation of policy is widely recognized, and is found in existing FOI legislations around the world.

To countervail the expansion of exceptions, the committee report preserved and strengthened the safeguards against abuse of exceptions that we have fought for. These safeguards include:

· The narrow scope of the exceptions, achieved by specifying the harm on public interest that we wish to avoid to justify the confidentiality;

· The reiteration of the jurisprudence that the burden of proving an exception lies with government;

· The qualification that the exceptions are to be strictly construed;

· The prohibition against using exceptions to cover-up a crime, wrongdoing, graft, or corruption;

· The qualification that the President, the Supreme Court, the Senate, the House of Representatives, and the Constitutional Commissions may waive an exception with respect to information under their respective control, when they deem that there is an overriding public interest in disclosure;

· The proviso that access to information shall not be denied if public interest in the disclosure of the information outweighs public interest in securing its confidentiality; and,

· The imposition of criminal liability for claiming an exception when such claim is manifestly devoid of factual basis.

We also note the expansion of the list of documents that need to be disclosed without need of request, to include the SALNs of the highest officials of the country, pursuant to Art. XI, Sec. 17 of the Constitution. This removes any more excuse to withhold SALNs from the public, consistent with the intent of the Constitution that the burden to lead by example rests on the holders of the greatest power.

In sum, the Senate committee’s substitute bill, if passed, secures the following gains for the people:

· It will impose a uniform and speedy procedure for access to information, thereby removing the room for administrative avoidance;

· It will free the broadest amount of non-sensitive information for easy access by citizens in availing of government services;

· It lays down clear limits on exceptions, subject to safeguards against abuse;

· It identifies a list of documents of high public interest that are required to be disclosed without need of request, including SALNs;

· It introduces basic standards on government’s record keeping and introduces various mechanisms to facilitate easy access of information; and,

· It introduces better remedies to denial of access and violation of our right to information, including the imposition of administrative and criminal liability.

Finally, we commend Senator Honasan’s initiative to deepen the conception of the right to information, from one based mainly on principles of accountability, anti-corruption, and people’s participation, to include the idea that the people own the information held by government. The committee report based this assertion on the first Constitutional principle (Article II, Section 1 of the 1987 Constitution) that “sovereignty resides in the people and all government authority emanates from them”.

House Should Walk the Talk and Act on FOI Now

We look to the Senate for leadership on FOI by working for the speedy approval of the committee report on second and third reading.

Unfortunately, just like in the 14th Congress, the efforts of the Senate will only be put to waste if the House of Representatives of the 15th Congress again fails or refuses to do its part.

It is in this context that we reiterate our call for Rep. Ben Evardone to perform his duty as committee chairman, and immediately call a hearing to resolve the remaining contentious issues in the committee, and submit a committee report for plenary action.

We also call on Speaker Belmonte to stand on the side of the people and include the passage of the FOI Bill in the House priorities. As much as he denounced the glib excuses that former Chief Justice Renato Corona gave to account for his non-disclosure of substantial dollar and peso deposits, so too must he assert strong leadership to thwart glib excuses for the non-movement of the FOI in the House and get it debated and approved at the soonest.

We call on the Executive to act on its endorsement of the FOI bill with the same resolve as it had on the postponement of the ARMM election, the impeachment of Chief Justice Corona, and the ongoing legislation of the sin taxes. Given the apparent resistance to FOI in the House of Representatives, strong executive support is imperative for the FOI law to finally pass.

All policy commitments and directions of the present administration — Daang Matuwid, steering committee membership in the Open Government Partnership, institutional reforms for good governance — point to the necessity of passing the FOI law. We firmly stand with all those who assert the people’s right to information, and with political leaders in the Executive and Legislative branch who are working to operationalize the State’s guarantee of freedom of information that is rightfully owned by the people.

We hold on to the hope that our leaders will transform rhetoric and promises into reality, and finally muster the sincerity and political will to pass the FOI law.

The Right to Know. Right Now! Coalition

Signed:

1. Atty. Nepomuceno Malaluan

Co-Director, Institute for Freedom of Information and

Co-Convenor, Right to Know. Right Now! Coalition

2. Mr. Vincent Lazatin

Executive Director, Transparency and Accountability Network

3. Ms. Malou Mangahas

Executive Director, Philippine Center for Investigative Journalism

4. Bishop Broderick Pabillo

Chairman, Catholic Bishops’ Conference of the Philippines – National Secretariat for Social Action-Justice and Peace (CBCP-NASSA)

Former President, Council of the Laity of the Philippines and Society of St. Vincent de Paul.

30. Mr. Edilberto M. Cuenca

Lay Coordinator, Commission on Family & Life, Vicariate of Sts. Peter and Paul, Makati City

31. Mr. Filomeno S. Sta. Ana III

Coordinator, Action for Economic Reforms

32. Ms. Jenina Joy Chavez

Director, Southeast Asia Monitor for Action

In his sponsorship speech of Senate Bill 3208, Honasan introduced the latest evolution of the FOI bill as the POGI Act of 2012, standing for the People’s Ownership of Government Information.

Honasan told the senate that under a real democracy, it is government that must justify any need to withhold information; it is not the duty of citizens to justify requesting it. Also, Honasan said it has been proven throughout history that the dearth of transparency and information is often whats drives social and political ills such as corruption and environmental degradation.

Thus, it is the state’s responsibility to make information available to the public, and to set up a practical and viable mechanism to ensure the availability of that information and prevent its abuse.

“A government of the People, by the People, and for the People is a government owned by the People. And only when the people are empowered with information and the truth can there be genuine democracy and ownership. Today, we reclaim our rights. Today, we assume our responsibility. Today, our people must be reminded that it is they who own this country and its government,” Honasan said in his speech.

The following is the full text of Honasan’s speech:

SPONSORSHIP SPEECH OF SENATOR GREGORIO HONASAN

MR. PRESIDENT,

Your Committee on Public Information and Mass Media jointly with the Committees on Civil Service and Government Reorganization and Finance have the honor to sponsor Senate Bill No. 3208 under Committee Report No. 156 entitled, “An Act Fortifying the People’s Right of Ownership over Information Held by the People’s Government,” otherwise known as the People’s Ownership of Government Information (POGI) Act of 2012.

Legislation on Freedom of Information has been recognized for nearly 250 years, with the first FOI law enacted in Sweden in 1766, under the Freedom of the Press Act. This was followed in 1789 by the French Declaration of the Rights of Man, which called for the right of citizens to review government expenditures.

On Dec. 14, 1946 the United Nations General Assembly passed the resolution stating unequivocally that:

Freedom of information is a fundamental human right and is the touchstone of all freedoms to which the United Nations is consecrated.

The significance of this concept was further explained in Article 19 of the UN Declaration of Human Rights, which provides that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media, and regardless of frontiers.

General principles on freedom of information may have been declared by the United Nations and other international treaties, but national laws have to be adopted to ensure that citizens are able to exercise this right.

The First Principle in Our Constitution states that, “The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them.” (Sec. 1, Article 2 – Declaration of Principles and State Policies of the 1987 Constitution)

As such, our democratic government is Government of the People, by the People, and for the People. But the prevailing reality is that most of our less privileged Filipino brethren are born, struggle to survive, and die without knowing that they are the rightful and constitutional owners of this beautiful country.

It is government’s responsibility to centralize information so as to govern effectively. It is the keeper of information on its territory, its land and resources, and its people, without which there would be no government. The three branches of government also safeguard information related to the policies and programs needed to carry out the functions of governance.

The centralization of personal records in government agencies does not in any way imply that the government owns its citizens. In fact, it is the other way around. Government is an instrument owned by the people, and all information in the custody of the State should be available for people to access for their well-being and benefit. Section 16, Article 13 of our Constitution, on Social Justice and Human Rights, mandates that, “The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged.”

If we are serious about sustainable development of our democracy as we are about our economy, transparency and open government must be at its core. If we have freedom of information tempered effectively by a corresponding sense of responsibility, then [organized hypocrisy,] high-placed syndicates and conspiracies, and excesses of partisan politics would be drastically reduced, if not eradicated.

Under Article 2, Section 28 of our Constitution, it is a declared policy that, “subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” It is further mandated under Article 3, Section 7 of our fundamental law that, “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” As early on observed by Justice Oliver Wendell Holmes in the 1928 case of Springer vs. Government of the Philippine Islands, however, “the great ordinances of our constitution do not establish and divide fields of black and white with mathematical precision into watertight compartments. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to another.” Recently, in the 2008 decision involving the Japan-Philippines Economic Partnership Agreement (JPEPA), the dissenting opinion of former Chief Justice Reynato Puno acknowledged that, “the Philippines does not have a comprehensive freedom of information law that enumerates the exceptions or sources of exceptions to the right to information.” In response to this challenge and to the call of our people, this measure seeks to fortify the people’s right of ownership over information held by the people’s government.

Following the Fall of the Berlin Wall, a trend to enact comprehensive laws for access to government-held information swept across Europe where, notably, countries in Central and Eastern Europe had already been enacting freedom of information laws as part of their transition into democracies. Incidences of corruption, human rights violations, and other political scandals in many countries have fueled a global campaign for the right of information, with the World Bank, the International Monetary Fund, and other institutions adding pressure for countries to enact laws to reduce corruption and make financial systems accountable.

There is a valid observation that decisions leading to environmental degradation, human rights violations, and graft and corruption are often made behind closed doors. Political machinations, where failures are hidden under a shroud of secrecy, enable the guilty to escape responsibility, and the avowed reasons for secrecy become the very same reasons for the isolation, if not downfall, of governments.

There are understandable exemptions, especially in areas involving foreign policy and national security, which have been used to justify decisions sometimes resulting in unnecessary loss of life and limb, and even the destruction of entire communities. Under the pretext of national security, costly decisions have been carried out, which could have been avoided had there been honest disclosure of information.

The non-disclosure of information can only be justified if withholding it outweighs the harm of disclosure. Other than that, the restriction on access to information, even on national security concerns or during emergencies, should not be permanent, automatic, or absolute. The government must also set up the proper mechanisms to review any denial of information, especially amid suspicions that state instruments have been used by officials to pursue hidden agendas or persecute political opponents under the pretext of national security. It is assumed that genuine national security means saving lives and property, but it has also been shown that lies can be perpetuated and wrong decisions made by using national security as an excuse.

Maintaining secrecy – or its opposite, making baseless pronouncements – is costly business, but nothing could be more costly than decisions with unintended results, results that are euphemized and sanitized as collateral damage. It is a situation that is further complicated when mistakes are not officially brought to light because of the privilege of national security.

In an “open society,” people do not exist for the “national security state,” where “Big Brother” is supposed to know best. Today, the State is justified only up to the point that it serves the people, and its security and stability largely depend on the mutual accessibility of its agencies and the people it is expected to serve. This representation agrees that the freedom of information is “the touchstone of all freedoms to which the United Nations is consecrated,” and affirms the concept of POGI, which is the acronym for “People’s Ownership of Government Information.”

Sunshine laws like Freedom of Information provide a healthy environment for decision-making, where citizens get better treatment from their institutions, and are, at the same time, empowered to sort out options for their own contributions to government. FOI will afford citizens the opportunity to look into the workings of the three branches of government and the different agencies, allowing them to better define their roles in the whole system of democratic governance.

Freedom of Information is guided by the principle of honest and maximum disclosure of state-controlled information. If there are exceptions, these should be explicitly defined, and it must be proven that, in this instance, it will clearly be more beneficial to public interest to withhold information than to disclose it.

The Philippines prides itself in being the first democratic republic in Asia, predating the proposition that democracy was brought by the Americans. The First Propaganda Movement of Graciano Lopez Jaena, Jose Rizal, Marcelo H. del Pilar, and others was a movement for the freedom of information, which sought to bring to light the abuses of the Spanish regime that had kept Filipinos in the dark for more than three centuries.

Today, about a century and a half after the First Propaganda Movement, much has yet to be accomplished in the journey to freedom. This representation believes that People’s Ownership of Government Information (POGI) and our mission to give meaning to our democracy are important milestones on this journey. The freedoms of speech and of the press will always have to be balanced with the right to life and honor as constitutional principles. But in all instances, the balance between disclosure and secrecy must always be guided by the north star of public interest.

A government of the People, by the People, and for the People is a government owned by the People. And only when the people are empowered with information and the truth can there be genuine democracy and ownership. Today, we reclaim our rights.

Today, we assume our responsibility. Today, our people must be reminded that it is they who own this country and its government.

Thus, we present the People’s Ownership of Government Information Act (POGI Act of 2012), and we reclaim our future for children.

Mr. President, I humbly submit to the collective wisdom and judgment of my colleagues the immediate approval of this landmark piece of legislation.

Thank you.

Media organizations were quick to report the developments in the senate, as well as the apparent lack of any development in the House of Representatives.

Below are some of the links to the breaking news stories on the endorsement of the FOI bill in the senate.